F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

APR 2 1999

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ANTHONY R. GRAYSON,

No. 98-3159
(D.C. No. 97-CV-3152)
(D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Petitioner Anthony R. Grayson appeals from the

district courts partial

denial of his motion to vacate, set aside, or correct his sentence, filed pursuant
to 28 U.S.C. 2255. Petitioner is currently serving a term of incarceration
following conviction on one count of possession of crack cocaine with intent to
distribute, a violation of 21 U.S.C. 841(a)(1). We have jurisdiction over this
appeal pursuant to 28 U.S.C. 1291 and 2253. Because petitioners 2255
motion was filed after the enactment of the

Antiterrorism and Effective Death

Penalty Act of 1996, the certificate of appealability provision created by that

act is applicable to his case. See 28 U.S.C. 2253(c)(1)(B). The district court
denied petitioner a certificate of appealability. We have construed petitioners
notice of appeal as a renewed request for a certificate of appealability. See
Fed. R. App. P. 22(b)(2). Petitioner must demonstrate a substantial showing
of the denial of a constitutional right before this court considers his appeal.
See 28 U.S.C. 2253(c)(2).
In his 2255 motion, petitioner argued to the

district court that his trial

counsel was ineffective because he 1) failed to file a direct appeal on petitioners

behalf, 2) failed to investigate and present the testimony of two witnesses,
3) failed to file a suppression motion as to introduction of the cocaine or file
a motion in limine as to the use at trial of a letter found on petitioners person at
the time of his arrest, 4) failed to object at sentencing to the computation of his
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criminal history, and 5) failed to object to the type of cocaine used as a basis to
compute his sentence. Petitioner also argued ineffective assistance of counsel
as a result of the cumulative effect of these alleged errors.
The district court held a hearing on petitioners 2255 motion, at which
petitioners trial counsel and the two witnesses in question testified. At that time,
petitioner abandoned his arguments regarding counsels failure to file a
suppression motion as to introduction of the cocaine and to object to the type of
cocaine on which his sentence was based. The court granted petitioner relief on
his claim that counsel had failed to perfect a timely direct appeal on his behalf.
The court ruled that it would resentence petitioner, at which proceeding petitioner
could challenge the computation of his criminal history. Upon resentencing,
petitioner would be able to take a timely direct appeal.

See Rec. Vol. I, tab 58

(District Courts Memorandum and Order), at 5. The court also ruled that
petitioners arguments about introduction of the letter at trial could be heard
on direct appeal.

See id. at 13.

The district court concluded that counsels failure to interview the two
witnesses was a reasonable decision in light of uncontroverted testimony that
petitioner had told counsel the witnesses could add nothing to his defense.
Therefore, the court ruled that the decision not to interview was trial strategy and
did not constitute ineffective assistance.

See id. at 9. Additionally, based on the

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witnesses testimony at the 2255 motion hearing, the court held that no
prejudice resulted from counsels decision not to interview the witnesses.
See id. at 10-11.
On appeal, petitioner reargues three of the points of alleged ineffective
assistance of counsel raised to the

district court. Petitioner contends that his trial

counsel was ineffective for failing to perfect a timely direct appeal. This issue is
moot because petitioner was granted relief by the

district court. Petitioner was

resentenced and the record reflects that he perfected a timely direct appeal from
that proceeding. Petitioner also argues that trial counsel was ineffective for
failing to file a motion in limine or otherwise restrict testimony at trial regarding
the letter. However, petitioner fails to acknowledge that the
declined to rule on this issue. We agree with the

district court

district court that the issue can

be raised in petitioners direct appeal, and therefore decline to address it here.

See Anixter v. Home-Stake Prod. Co.

, 77 F.3d 1215, 1228 (10th Cir. 1996) (noting

that appellate court will not generally consider issues not passed upon by the
district court).
Finally, petitioner contends that his counsel was ineffective because he
failed to interview or present the testimony of two witnesses. After review of
the record on appeal and applicable law, we conclude that petitioner has not
demonstrated his eligibility for a certificate of appealability on this issue.
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Therefore, for substantially the same reasons contained in the

district courts

Memorandum and Order dated April 7, 1998, petitioners motion for a certificate
of appealability is DENIED and this appeal is DISMISSED.

Entered for the Court

Wade Brorby
Circuit Judge

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